Father’s Right to Share in Residential Decision-making Triggers International Convention, Forces Dispute Case Back to Brazilian Courts

A South American mother’s attempt to relocate from Brazil to Florida became more complicated after the Third District Court of Appeal determined that an international convention regarding child custody applied to her case and required her to return with her two daughters to Brazil so that Brazilian courts could sort out the family’s custody dispute. While the mother had sole physical custody of the daughters, the mother and father had a joint right to determine the country in which the children would reside.

After the couple married in Ecuador in 2001, they moved to Brazil, where they had two daughters. The couple eventually split, and a Brazilian court entered a custody and visitation order. The order gave the mother sole custody and the father certain visitation rights. In December 2012, the mother took the girls and relocated to Miami.

The father went back to the Brazilian courts to seek the return of his daughters. He also filed a request in a Miami trial court for the same relief. The Miami court denied the father’s petition, concluding that he had only a right of access to the children and lacked the “rights of custody” needed to force the children’s return.

The appeals court, however, sided with the father. As a starting point, the court explained that an international agreement called the Hague Convention states that, if a child is wrongfully removed from his or her usual country of residence, the child should be returned to the home country promptly. The court listed three necessary elements a parent must prove to invoke the Hague Convention, but the only criterion in dispute in this case was whether he had a right of custody or merely a right of access.

The custodial arrangement approved by the Brazilian court might have constituted only a right of access for the father, except for one point. This was that the custody order gave the father the right to bar the mother from relocating the daughters’ residence from Brazil to another country without his consent. This right was sufficient to amount to a right of custody under the Hague Convention, the court ruled.

In reaching its conclusion in favor of the father, the appeals court determined that this case closely mirrored a 2010 US Supreme Court case, Abbott v. Abbott. In that case, a Chilean court created a custody arrangement similar to the one the couple in the present case had. The custodial parent moved to the US, and the non-custodial parent went to court to force the return of the child to Chile. In both cases, the courts decided that, by creating a provision giving the non-custodial parent a say in transnational moves, the courts deciding custody gave the parents a joint right to determine the child’s country of residence. This right was enough to meet the “right of custody” standard under the Hague Convention.

As South Florida is a landing spot for people from around the world, especially Latin America, custody disputes can be uniquely complex. For thoughtful and skillful advice on your custody law issue, contact the South Florida family law attorneys of Sandy T. Fox, P.A.. Our attorneys can help you understand your rights under the relevant laws.

Contact us online or by calling (800) 596-0579 to schedule your confidential consultation.

More Blog Posts:

Florida Appeals Court Nixes Father’s Relocation of Children to New Jersey, Fort Lauderdale Divorce Lawyer Blog, April 14, 2014
Florida Court Orders Russian Mother to Adjudicate Child Support Case Overseas, Fort Lauderdale Divorce Lawyer Blog, Dec. 12, 2013